## Facts

- Jane Cary owned property in Rapid City that was annexed into the city on September 8, 1992, and initially classified as “no use.”
- The city imposed a street assessment of about $90,000 on part of the property, and Cary’s property taxes increased sharply while the land continued to be used as a horse pasture producing minimal rental income.
- On December 6, 1993, the city rezoned the property to “general agriculture,” described as a temporary classification until development was proposed.
- In 1995 Cary received a purchase offer conditioned on rezoning to “medium density residential” to allow apartment construction.
- Cary petitioned for rezoning; multiple city departments recommended approval.
- On September 5, 1995, the city adopted Ordinance 3224 rezoning the property to medium-density residential.
- Neighboring landowners owning more than 40% of the land within 150 feet filed a protest under SDCL 11-4-5, which provided that a protested zoning ordinance “shall not become effective.”
- The city treated the protest as preventing Ordinance 3224 from taking effect, leaving the property zoned general agricultural.

## Issues

1. Whether SDCL 11-4-5 unconstitutionally delegates municipal legislative zoning power to private landowners by allowing a protest to prevent a duly enacted ordinance from becoming effective without standards or legislative review.
2. Whether SDCL 11-4-5 violates due process and equal protection by permitting arbitrary and unequal treatment of similarly situated landowners.

## Decision

- The Supreme Court of South Dakota reversed the trial court.
- The court held SDCL 11-4-5 unconstitutional because it granted a private veto over zoning decisions without standards and without review by the municipal legislative body.
- The court concluded the neighbor protest could not prevent Ordinance 3224 from taking effect.
- The court directed entry of judgment for Cary recognizing the rezoning ordinance as valid and effective.

## Legal Principles

- Zoning is a legislative function that must be exercised by politically accountable governmental bodies; it may not be surrendered or re-delegated to private persons.
- A statute that allows private individuals to control whether a zoning ordinance becomes effective, without articulated standards or governmental review, is an unconstitutional delegation of legislative power.
- Land-use decisionmaking procedures that permit uncontrolled private discretion to determine others’ property rights raise due process and equal protection concerns because they allow arbitrary discrimination among similarly situated owners.

## Conclusion

The court invalidated a statutory protest mechanism that let neighboring landowners block zoning ordinances by filing a threshold protest, holding that this private veto was an unconstitutional delegation and could not be used to nullify the city’s rezoning of Cary’s property.


Cary v. City of Rapid City, 559 N.W.2d 891 (S.D. 1997)